ANG Newspapers

National Labor Relations Board - Board Decisions

Nov 9, 2004

343 N.L.R.B. 564 (N.L.R.B. 2004)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
343 NLRB No. 69
564
California Newspapers Partnership d/b/a ANG
Newspapers and Northern California Media
Workers Guild/Typographical Union, Local
39521, TNG-CWA, AFL–CIO. Case 32–CA–
20008
November 9, 2004
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND MEISBURG
On November 6, 2003, Administrative Law Judge
Mary Miller Cracraft issued the attached decision. The
Respondent filed exceptions and a supporting brief, and
the General Counsel filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions1 and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions only
to the extent consistent with this Decision and Order.
The judge found that the Respondent violated Section
8(a)(1) by telling its employee, a reporter, that he created
the appearance of a conflict of interest by appearing be-
fore the city council to seek support for the Union’s ef-
forts to negotiate a contract. We reverse and dismiss the
complaint.
I. BACKGROUND
The Employer is a newspaper publisher. The Union
represents a unit of about 200 reporters, editors, and
other editorial employees. At the time of the events at
issue here, the parties’ collective-bargaining agreement
had expired, and they were involved in protracted nego-
tiations for a new contract. During this time, the Union
and its members decided to seek support from local city
councils. They did so by having the Respondent’s re-
porters speak at the city council meetings and ask for
resolutions supporting the Union’s efforts to get a con-
tract.
This case revolves around the Respondent’s discussion
with employee Tom Anderson about Anderson’s city
council appearance. Anderson is a bargaining unit mem-
ber and a reporter for the Employer’s Fremont Argus.
On October 22, 2002,2 Anderson attended a Fremont
City Council meeting while off duty.3 He identified him-
self as a business reporter for the Respondent and asked

1 There are no exceptions to the 8(a)(1) allegations dismissed by the
judge.
2 All dates are in 2002 unless otherwise specified.
3 A different employee was originally selected to address the coun-
cil, but that employee was called away on a story. Anderson was se-
lected to go in his place, because Anderson had the least amount of
contact with the city council during the course of his reporting.
the council to pass a resolution supporting the Union’s
efforts to negotiate a contract. Anderson told the council
that he would not promise more favorable news coverage
in return for the resolution.
At the time of the meeting, Anderson was a business
reporter who did not regularly attend city council meet-
ings or report on the city council. During the course of
his reporting in the past, however, Anderson had inter-
viewed city officials, including the mayor and one city
council member. Further, a few weeks after his city
council appearance, Anderson wrote an article on the
city’s economic development, in which he quoted certain
city officials who report to the city council. The article
appeared in the paper about 1 month after Anderson’s
city council appearance.
Sometime after October 22, Business Editor Drew Vo-
ros and Deputy Business Editor Mark Stafforini, who
supervised Anderson, learned that Anderson had ad-
dressed the city council. Later, they also learned that
Anderson was writing an article about the city. Con-
cerned about the appearance of a conflict of interest, Vo-
ros consulted other members of management and decided
to speak to Anderson.4
Voros and Stafforini met with Anderson on November
22. After a routine discussion with Anderson about an
unrelated article that Anderson was writing, Voros and
Stafforini raised the issue of Anderson’s city council
appearance. They told Anderson that they were con-
cerned about the appearance of a conflict of interest be-
cause Anderson had gone before the city council to ask
for a favor, when Anderson might be reporting about the
city or city council, and in fact had written a story that
involved city sources and was about city government.
Voros and Stafforini told Anderson that they felt some-
one else should have spoken to the council instead of
Anderson. They explained the importance of protecting
the integrity and credibility of the paper. They empha-
sized, however, that Anderson had the right to engage in
union activity. They told Anderson that their concerns
were unrelated to the fact that Anderson’s remarks to the
city council had been about the Union. At the end of the
discussion, Voros reaffirmed that Anderson was a valued
employee. Anderson was not disciplined.
The judge found that the Respondent violated Section
8(a)(1) by telling Anderson that he had created the ap-
pearance of a conflict of interest by speaking to the city
council on behalf of the Union. We reverse.

4 The Respondent’s upper management was aware of several other
instances in which its reporters had addressed local city councils, and
was discussing the appropriate course of action.
ANG NEWSPAPERS 565
II. ANALYSIS
A. Appropriate Legal Standard
In finding that the Respondent violated Section
8(a)(1), the judge relied on two alternative rationales:
one based on the Board’s decision in Peerless Publica-
tions, 283 NLRB 334 (1987), an 8(a)(5) case, and an-
other based on the Board’s 8(a)(1) standard, under which
the judge examined whether the Respondent’s conduct
reasonably tended to interfere with the employee’s Sec-
tion 7 rights. Under both rationales, the judge found that
the Respondent’s “admonition” to Anderson violated
Section 8(a)(1).
As the judge acknowledged, Peerless involved an al-
leged violation of Section 8(a)(5). The issue was
whether the respondent, a newspaper publisher, violated
Section 8(a)(5) by unilaterally implementing a code of
ethics without giving the union notice and an opportunity
to bargain. The issue in the present case, of course, is
different: whether the Respondent violated Section
8(a)(1) by telling an employee that he had created the
appearance of a conflict of interest. Although Peerless
addresses some of the same newspaper industry concerns
as are involved herein, we find it more appropriate to
examine this case under 8(a)(1) principles.5
Under the 8(a)(1) standard, the Board first examines
whether the employer’s conduct reasonably tended to
interfere with Section 7 rights. If so, the burden is on the
employer to demonstrate a legitimate and substantial
business justification for its conduct. “It is the responsi-
bility of the Board to strike the proper balance between
the asserted business justifications and the invasion of
employee rights in light of the Act and its policy.”
Caesar’s Palace, 336 NLRB 271, 272 fn. 6 (2001);
Jeannette Corp., 532 F.2d 916, 918 (3d Cir. 1976).
As explained below, even assuming that the Respon-
dent’s conversation with Anderson interfered with Sec-
tion 7 rights, we find that the Respondent has demon-
strated a legitimate and substantial business justification
that outweighs the adverse effect on Section 7 rights.
B. The Respondent Demonstrated a Legitimate and Sub-
stantial Business Justification That Outweighs the Ad-
verse Effect on Section 7 Rights
The Respondent has a legitimate interest in protecting
its newspaper against the appearance of conflicts of in-

5 We recognize that the Board took the Peerless guidelines into con-
sideration in two decisions addressing whether an employer’s rules of
conduct violated Sec. 8(a)(1). See Cincinnati Suburban Press, 289
NLRB 966 fn. 2 (1988); overruled in part on other grounds by Lafay-
ette Park Hotel, 326 NLRB 824 (1998); Simplex Wire & Cable Co.,
313 NLRB 1311 (1994). However, nothing in these decisions suggests
that the Board intended Peerless to supplant the traditional 8(a)(1)
standard.
terest that could damage the paper’s credibility. As the
District of Columbia Circuit has stated,
[P]rotection of the editorial integrity of a newspaper
lies at the core of publishing control. In a very real
sense, that characteristic is to a newspaper or magazine
what machinery is to a manufacturer. At least with re-
spect to most news publications, credibility is essential
to [a publisher’s] ultimate product and to the conduct of
the enterprise.
Newspaper Guild Local 10 (Peerless Publications) v.
NLRB, 636 F.2d 550, 560 (D.C. Cir. 1980). We recognize
that Anderson’s beat did not cover the city council. How-
ever, the Respondent’s witnesses testified that reporters
cannot know with certainty what they will be covering in
the future. Beats can change, and reporters are sometimes
assigned to cover stories on which they would not ordinarily
report. The Respondent’s former executive editor also testi-
fied that readers, in assessing the credibility of a newspaper,
see a reporter as working for the newspaper as a whole and
do not necessarily recognize the distinction between beats.
Even though Anderson did not regularly cover the city
council, the newspaper for which he reported did, and
Anderson himself wrote an article about the city’s economic
development only a month after his city council appearance.
Significantly, it is undisputed that Anderson sometimes did
deal with city officials during the course of his reporting,
and in fact quoted city officials in his article about the city’s
economy. Under all these circumstances, the Respondent
had the right to discuss with Anderson the possibility that
his city council address created the appearance of a conflict
of interest. Thus, the Respondent had a legitimate and sub-
stantial business justification for its discussion with Ander-
son.
That justification outweighs the adverse effect on Sec-
tion 7 activity. The effect was minimal, if not nonexis-
tent. Anderson was not disciplined. The Respondent
made clear that Anderson was free to engage in union
activity. Voros emphasized at least three times during
the meeting that “this is not about representing the union,
this is not a union issue.” The Respondent refrained
from meeting with Anderson about his city council ap-
pearance until the Respondent learned that Anderson was
writing an article about the city. If not for that article, it
is not even clear whether the Respondent would have
called Anderson in to discuss the issue. The Respon-
dent’s legitimate interest in protecting the newspaper’s
credibility against the appearance of conflicts of interest
justifies the minimal restraint on Anderson’s Section 7
rights. See, e.g., Caesar’s Palace, supra at 272 (em-
ployer had legitimate business justification for its confi-
dentiality rule prohibiting discussion of ongoing drug
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD566
investigation; justification outweighed the rule’s in-
fringement on employees’ rights). Accordingly, the Re-
spondent’s discussion with Anderson did not violate Sec-
tion 8(a)(1).
C. Even Under Peerless, the Respondent’s Discussion
With Anderson Did Not Violate Section 8(a)(1)
Moreover, we would reach the same result even if we
were to apply the Peerless principles. The issue in Peer-
less was whether the employer violated Section 8(a)(5)
by unilaterally implementing a code of ethics, which
included conflict of interest provisions. Recognizing a
news publisher’s interest in protecting its “editorial in-
tegrity,” the Board found that subject to certain require-
ments, a publisher may unilaterally establish “reasonable
rules” to prevent activity that would directly compromise
its employees’ standing as responsible journalists. 283
NLRB at 335. The Board set forth the following re-
quirements for unilateral action:
[T]he subject matter sought to be addressed by the em-
ployer must go to the protection of the core purposes of
the enterprise. When that is the case, the rule must on
its face be (1) narrowly tailored in terms of substance,
to meet with particularity only the employer’s legiti-
mate and necessary objectives, without being overly
broad, vague, or ambiguous; and (2) appropriately lim-
ited in its applicability to affected employees to accom-
plish the necessarily limited objectives.
Id. Again, we find this standard more appropriate for
8(a)(5) cases. If we were to apply it here, however, we
would nevertheless reverse the judge and dismiss the com-
plaint.
First, we would find that maintaining the credibility
and integrity of its newspaper is one of the core purposes
of the Respondent’s enterprise. The Respondent’s dis-
cussion with Anderson goes to the protection of this core
purpose.6
Second, contrary to the judge’s findings, the conversa-
tion with Anderson was narrowly tailored, and it was
neither vague nor ambiguous. The Respondent privately
spoke to one particular employee for one specific in-
stance of conduct that the Respondent considered inap-
propriate. The judge stated that the conversation was
overbroad because it “referenced the appearance of a
conflict of interest arising from asking a favor of a news
source.” However, according to the credited testimony,

6 Cf. W-I Forest Products Co., 304 NLRB 957, 958–959 (1991) (ban
on smoking “d[oes] not go to the heart of the Respondent’s business in
the way that, for example, a rule prohibiting a reporter from taking gifts
from the source for one of her stories relates to the core entrepreneurial
concern of a newspaper”).
the language actually used by the Respondent was more
specific: Voros and Stafforini told Anderson that they
were concerned because Anderson had asked the city
council for a favor, when Anderson could end up report-
ing on the city or the council and actually did so. That is,
Anderson’s city council appearance was inappropriate
because there was the possibility that he would report on
the city or the city council. The fact that he later did so
served to illustrate the problem. We find that the conver-
sation, when viewed in context, was sufficiently clear
and narrowly tailored to satisfy the Peerless test.7
Third, the conversation was “appropriately limited in
its applicability to affected employees to accomplish the
necessarily limited objectives.” Id. at 335. The judge
finds that it was unclear whether the conversation applied
to Anderson alone or to all employees in the bargaining
unit. Again, however, the conversation was with Ander-
son alone in response to a specific incident. There is no
evidence that the Respondent’s discussion with Anderson
was even known to other employees.8
For the foregoing reasons, even if we were to analyze
the issue under Peerless, we would find that the Respon-
dent’s discussion with Anderson did not violate Section
8(a)(1). Accordingly, we reverse the judge and dismiss
the complaint.9

7 The judge faults the Respondent for failing to suggest to Anderson
other ways in which the Union could seek the support of the city coun-
cil without creating the appearance of a conflict of interest. However,
the Respondent had no obligation to do so.
8 Even if the conversation did apply to other employees besides
Anderson, there is nothing to suggest that it would apply to employees
other than reporters. The Respondent’s entire discussion with Ander-
son centered around the fact that Anderson is a reporter. Thus, the
present case stands in marked contrast to Peerless, in which the Board
found that the employer’s ethics code was not appropriately limited, in
part because it “applie[d] on its face to ‘all employees,’ without appro-
priate limitation to designated categories of employees (e.g., reporters
and editorial personnel) as to which requirements differ.” 283 NLRB at
336.
9 Because we dismiss the complaint on other grounds, we need not
pass on the Respondent’s arguments that the First Amendment requires
dismissal and that the judge erred in excluding certain evidence.
ANG NEWSPAPERS 567
ORDER
The complaint is dismissed.
Amy Berbower, Esq., for the General Counsel.
Laurence R. Arnold, Esq., of San Francisco, California, for the
Respondent.
DECISION
STATEMENT OF THE CASE
MARY MILLER CRACRAFT, Administrative Law Judge. The
General Counsel alleges that California Newspapers Partner-
ship d/b/a ANG Newspapers (Respondent) committed six viola-
tions of Section 8(a)(1) of the National Labor Relations Act1
during two meetings with its employee, Tom Anderson, occur-
ring on August 28 and November 22, 2002.2 Both meetings
took place during the period of contract negotiations between
Respondent and Northern California Media Workers
Guild/Typographical Union, Local No. 39521, TNG-CWA,
AFL–CIO (the Union).3
Allegations
Specifically, General Counsel alleges that at a meeting held
on August 28, Respondent (1) told Anderson he could not re-
ceive a merit raise because of the Union; (2) asked Anderson
how he felt about not getting a raise because of the Union; and
(3) interrogated Anderson about his opinions of the Union and
the status of contract negotiations. Further, General Counsel
alleges that at a meeting held on November 22, Respondent (1)
told Anderson that he had created a conflict of interest by
speaking to the city council on behalf of the Union, (2) solicited
a grievance by asking Anderson if he was happy working for
Respondent, and (3) interrogated Anderson about his opinions
of the Union and the status of contract negotiations.
The parties were afforded full opportunity to appear, to in-
troduce relevant evidence, to examine and cross-examine wit-
nesses, and to argue the merits of their respective positions. On
the entire record, including my observation of the demeanor of
the witnesses,4 and after considering the briefs filed by counsel
for the General Counsel and counsel for the Respondent, I
make the following

1 Sec. 8(a)(1) of the Act, provides in relevant part that it shall be an
unfair labor practice for an employer to interfere with, restrain, or co-
erce employees in the exercise of their rights guaranteed by Section 7
of the Act, to self-organization, to form, join, or assist labor organiza-
tions, to bargain collectively, to engage in other concerted activity, and
to refrain from any such activities.
2 All dates are in 2002 unless otherwise indicated.
3 This case was tried in Oakland, California, on Thursday and Fri-
day, July 24 and 25, 2003, based on a charge and amended charge filed
by the Union on September 13, 2002, and November 27, 2002, respec-
tively. The General Counsel issued the complaint on January 28, 2003.
4 Credibility resolutions have been made based on witness de-
meanor, the weight of respective evidence, established or admitted
facts, inherent probabilities, and reasonable inferences drawn from the
record as a whole. Testimony contrary to my findings has been discred-
ited on some occasions because it was in conflict with credited testi-
mony or documents or because it was inherently incredible and unwor-
thy of belief.
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION STATUS
Respondent, a California partnership, maintains an office and
place of business in Pleasanton, California, where it is engaged
in the publication and distribution of daily newspapers. During
the 12-month period ending January 28, 2003, Respondent
derived gross revenues in excess of $200,000 and during the
same time held membership in or subscribed to various inter-
state news services, published nationally syndicated features,
and advertised nationally sold products. Respondent admits and
I find that it is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act and that the
Union is a labor organization within the meaning of Section
2(5) of the Act.
II. BACKGROUND
Respondent publishes five newspapers in the San Francisco
Bay area as follows: The Oakland Tribune, The Tri-Valley
Herald, The Hayward-Daily Review, The Fremont Argus, and
The San Mateo Times. Drew Voros is the business editor for all
publications and Mark Stafforini is the deputy business editor
for all publications. Tom Anderson was hired in August 2001
as a business reporter for The Fremont Argus. In March 2003,
Anderson began writing for the local section of The Fremont
Argus.
Respondent and the Union were parties to a collective-
bargaining agreement in effect from August 17, 1998 until
August 16, 2001. The agreement covered a unit of approxi-
mately 200 employees at the five newspapers, including report-
ers, photographers, copy editors, and other editorial personnel.
When the agreement expired, the Union and Respondent began
protracted negotiations for a new contract. Near the 1-year
anniversary of contract expiration, union members held rallies
and picketed outside one of Respondent’s offices to protest the
lack of progress in reaching a new contract.
III. AUGUST 28 PERFORMANCE REVIEW MEETING
Facts
At about the same time as the 1-year anniversary of expira-
tion, on August 28, Anderson met with Voros and Stafforini to
discuss his first annual performance review.
The parties’ expired contract provided for merit increases
based upon performance review. A guaranteed merit fund, to be
distributed in its entirety, was based on a percentage of the
payroll and minimum merit increase amounts were set forth.
The agreement specifically provided,
However, upon the expiration or termination of this Agree-
ment, unless it is extended beyond its term by a specific writ-
ten agreement signed by the parties, [Respondent] shall be
under no obligation to grant merit increases to any employee
until a new agreement is reached.
There is no evidence that the agreement had been extended.
The three participants in the performance review presenta-
tion agree that Voros read Anderson’s review and told Ander-
son it was the best review he had given any employee that year.
At this point, the testimony of the three diverges.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD568
Anderson testified that Voros said he would like to give
Anderson a raise but “my hands are tied, I’d really like to give
you a raise but I can’t because of union bargaining.” Anderson
further testified that Voros said he would fight to get a raise for
Anderson. Voros asked Anderson how he felt about that and
Anderson expressed disappointment. According to Anderson,
Voros then asked how Anderson felt about the current status of
negotiations: the Union opposed mediation and Respondent
wanted mediation. Anderson responded noncommittally.
Voros testified that he told Anderson he could not give him a
raise because there was no contract. Voros explained that Re-
spondent was not giving raises because there was no mecha-
nism in place for giving raises. However, Voros opined that
there were always exceptions to the rule and he would request
that Anderson be made an exception. Voros continued that
from his standpoint, it appeared that contract negotiations were
at a standstill and that one of the sticking points was whether to
utilize mediation. Voros expressed frustration at the failure to
agree on use of mediation so that negotiations could continue
and good employees like Anderson could be rewarded. Voros
denied that he told Anderson he was not getting a raise because
of the Union or the Union’s position in bargaining. Voros de-
nied that he asked Anderson what he thought about the fact that
he was not getting a raise because of the Union and denied that
he asked Anderson what he thought about the status of negotia-
tions.
Stafforini recalled that Voros told Anderson that despite the
strong review, unfortunately management had informed him
“that because there was no contract with the union and because
there was no official mechanism for giving raises,” Respondent
decided not to give raises. Stafforini recalled that Voros said he
would try to persuade the executive editor to make an exception
for Anderson. Voros told Anderson he felt bad about this but he
was “stuck in the middle and there wasn’t much he could do
about it.” Voros suggested that Anderson might want to talk
with the Union about pursuing mediation to move things along.
Stafforini denied that Voros or he asked Anderson what he
thought about negotiations, how Anderson felt about not getting
a raise, or told Anderson he was not getting a raise because of
the Union.
Credibility Resolution
All three of the witnesses exhibited impressive testimonial
demeanor coupled with extremely thoughtful, detailed recollec-
tions. Moreover, the testimony of the three witnesses is very
similar. Anderson’s testimony differs from that of Stafforini
and Voros only with respect to the exact language utilized in
discussing his not receiving a raise. Of course, Anderson, a
current employee, may be accorded enhanced credibility be-
cause he was testifying against his economic self-interest. See,
e.g., Georgia Rug Mill, 131 NLRB 1304, 1305 fn. 2 (1961).
However, this is only one factor to be considered. Flexsteel
Industries, 316 NLRB 745 (1995). Because these facts arose in
the midst of protracted, somewhat bitter negotiations, which
polarized the parties, I have determined that current employee
status does not provide enhanced credibility in this case.
Based upon testimonial demeanor, I credit the testimony of
Stafforini over that of Anderson and Voros, when there is a
conflict. Additionally, as to testimonial content, I note that all
three witnesses testified in free narrative. Both Voros’ and
Anderson’s testimony, in this form, was highly scripted and
well organized, as if their memories had solidified over time. I
conclude that both were completely genuine in their beliefs but
that their memories had naturally evolved as time elapsed. Staf-
forini, on the other hand, exhibited gaps in his memory. Thus,
his testimony was fresher and more believable.
Analysis
Based on this credibility resolution, I find that Respondent
did not ask Anderson how he felt about not getting a raise be-
cause of the Union and did not interrogate Anderson about his
opinions about the Union and about the status of contract nego-
tiations. Moreover, I find that Respondent did not tell Anderson
that he would not receive a raise because of the Union. Rather,
Voros told Anderson that he would not receive a raise because
there was no contract with the Union and no official mecha-
nism in place for giving raises.
Further, I conclude that in telling Anderson that Respon-
dent’s policy was that no raises would be given because there
was no contract and no official mechanism in place for giving
raises, Voros was merely stating the parties’ agreement that
Respondent was under no obligation to grant merit increases
until a new agreement was reached. This does not rise to the
level of blaming the Union for failure to award a merit increase
to Anderson.
IV. OCTOBER 22 CITY COUNCIL MEETING
On October 22, Anderson attended a Fremont city council
meeting. Anderson addressed the city council as a representa-
tive of the Union. He asked the city council to support a resolu-
tion in favor of the Union in the ongoing negotiations with
Respondent. Anderson was not working at the time; he did not
wear a press badge, and did not sit at the press table. Anderson
did not regularly attend city council meetings as a business
reporter. However, he had interviewed city government em-
ployees and officials, including the mayor and at least one
council member, as part of his reporting.
V. NOVEMBER 22 MEETING
Facts
On November 22, Anderson met with Voros and Stafforini at
Respondent’s Pleasanton office. By this time, Anderson had
received a raise based on Voros’ efforts to create an exception
to Respondent’s policy. Anderson was told that the reason for
going to Pleasanton was to review a story. There is no dispute
that in the ensuing meeting, attended by Voros, Stafforini, and
Anderson, Voros admonished Anderson that his remarks to the
city council could create a perception of conflict of interest,
undermining the paper’s credibility. The admonition was not a
disciplinary action.
According to Anderson, Voros continued the conversation
by stating that he knew (from an article Anderson wrote for the
Union newsletter) that Anderson did not believe that the par-
ties’ current mediation efforts would succeed. Anderson testi-
fied that Voros referenced the generous merit increase Ander-
ANG NEWSPAPERS 569
son had received and asked if Anderson was happy working for
Respondent.5
Both Voros and Stafforini testified that there was no discus-
sion about the status of negotiations or mediation. Voros and
Stafforini denied that either of them asked Anderson if he was
happy working for Respondent. Voros and Stafforini recalled
that Voros said he hoped Anderson was happy and that the raise
had symbolically shown that Respondent believed Anderson
was a valuable employee.
Credibility Resolution
For the reasons stated above, I credit Stafforini whenever
there is a conflict in the testimony of the three participants in
the meeting. Thus, I find that there was no discussion of media-
tion, Anderson’s opinion about the Union, or the status of con-
tract negotiations. Accordingly, the allegations that Respondent
solicited a grievance by asking Anderson if he was happy
working for Respondent and interrogated Anderson about his
opinions of the Union and the status of contract negotiations,
are dismissed.
Arguments
Counsel for the General Counsel argues that Respondent’s
admonition of Anderson reasonably tended to restrain, coerce,
and interfere with protected union activities. Counsel notes that
Anderson’s appeal to the city council was protected because it
was not “so disloyal, reckless, or maliciously untrue as to lose
the Act’s protection,” citing Emarco, Inc., 284 NLRB 832, 833
(1987), incorporating NLRB v. Electrical Workers Local 1229
(Jefferson Standard), 346 U.S. 464 (1953).
Further, counsel notes that application of Peerless Publica-
tions, 283 NLRB 334 (1987), by analogy, leads to the inescap-
able conclusion that Respondent’s admonition of Anderson is
not privileged by editorial integrity. Counsel asserts that Re-
spondent’s unwritten “rule” prohibiting reporters from speaking
to the city council to request support for the Union is not nar-
rowly tailored to meet Respondent’s legitimate objectives and
is vague and ambiguous. Counsel also argues that the rule is not
limited in its applicability to affected employees to accomplish
the necessarily limited objectives.
Indeed, Respondent does not argue that Anderson’s appeal to
the city council exceeded the bounds of protected speech.
Rather, Respondent argues that its nondisciplinary admonish-
ment of Anderson was necessary to preserve and protect Re-
spondent’s impartiality. In this regard, Respondent asserts that
the Act may not be applied to a newspaper in a manner that
would circumscribe the “full freedom and liberty” of its First
Amendment rights. Thus, Respondent concludes, when edito-
rial concerns are at issue, these concerns override the Act. Re-
spondent relies upon Associated Press v. NLRB, 301 U. S. 103
(1937).
Further, Respondent notes that future prohibitions of its em-
ployees appearing before the city council does not silence the
voice of the Union because the Union had other individuals
available to address the city council. Finally, Respondent ar-

5 Anderson did not testify that he was interrogated about the Union
or about the status of contract negotiations. Accordingly, this allegation
is dismissed.
gues that if a violation is found, the remedy may not prohibit it
from directing that its editorial employees not engage in activi-
ties that pose the potential appearance of a conflict of interest,
including those that happen to be union related.
Analysis
In Peerless Publications, 283 NLRB 334 (1987), on remand
Newspaper Guild Local 10 (Peerless Publications) v. NLRB,
636 F.2d 550, 562 (D.C. Cir. 1980), the Board noted that “edi-
torial integrity of a newspaper lies at the core of publishing
control.” Pursuant to this philosophy, the Board held that a
newspaper could unilaterally implement a code of ethics, in-
cluding disciplinary provisions.
In order to preserve such, a news publication is free to estab-
lish reasonable rules designed to prevent its employees from
engaging in activity which would “directly compromise their
standing as responsible journalists and that of the publication
for which they work as a medium of integrity,” without nec-
essarily being required to bargain initially. It follows from this
privilege—which is directly incident to a newspaper’s integ-
rity—that the newspaper will be similarly exempt from man-
datory bargaining about disciplinary action for employee
breach of the basic rule. It must be emphasized, however, that
“[t]he degree of control which may be exercised by a publica-
tion in this regard is not open-ended, but must be narrowly tai-
lored to the protection of the core purposes of the enterprise.”
Id., at 335. Peerless Publications has been limited in its appli-
cation outside the unique context of the newspaper industry.
King Soopers, 340 NLRB 628, 628–629 (2003); Edgar P. Ben-
jamin Healthcare Center, 322 NLRB 750, 752 (1996); W-I
Forest Products Co., 304 NLRB 957, 958–959 (1991).
The Board held in Peerless Publications that in order to es-
cape a duty to bargain regarding a code of ethics, the provisions
must address the “protection of the core purposes of the enter-
prise.” Thus, the rule must be,
(1) narrowly tailored in terms of substance, to meet with par-
ticularity only the employer’s legitimate and necessary objec-
tives, without being overly broad, vague, or ambiguous; and
(2) appropriately limited in its applicability to affected em-
ployees to accomplish the necessarily limited objectives.
283 NLRB at 335. Additionally, the Board noted a balancing
test established by the court, on remand, as follows:
Moreover, when there is a conflict between an employer’s
freedom to manage his business in areas involving the basic
direction of the enterprise and the right of the employees to
bargain on subjects which affect the terms and conditions of
their employment, a balance must be struck, if possible, which
will take [into] account [the] relative importance of the pro-
posed actions to the two parties.
Newspaper Guild Local 10 (Peerless Publications) v. NLRB,
supra, citing Machinists Local 1304 (Fibreboard Corp.) v.
NLRB, 379 U.S. 203, 223 (1964), and Chemical Workers v.
Pittsburgh Plate Glass Co., 404 U.S. 157, 179 (1971).
In Cincinnati Suburban Press, 289 NLRB 966 fn. 2 (1988),
the Board applied Peerless Publications to an 8(a)(1) finding as
follows:
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD570
We agree with the judge that the Respondent violated Sec.
8(a)(1) by maintaining rules 18 and 29. We make clear, how-
ever, that the Respondent may adopt rules in which the con-
tent of the rules is necessary to the credibility of the institution
and/or the quality of its product, and the rules themselves are
narrowly tailored, unambiguous, and designate the category
of employees to whom the rules are applicable; provided,
however, that such rules do not improperly impinge on the
relevant rights of the affected employees. See Peerless Publi-
cations, 283 NLRB 334 (1987).
Thus, in Cincinnati Suburban Press, the Board apparently
adopted the balancing test set forth in Newspaper Guild Local
10 v. NLRB, supra, 636 F.2d at 562, and extended application
of Peerless Publications to 8(a)(1) analysis. Although the
Board subsequently overruled Cincinnati Suburban Press to the
extent that footnote 2 might be read as a finding that mere
maintenance alone of the rules at issue therein was unlawful,
the Board did not disavow its adoption of Peerless Plywood as
a mode of analysis. See Lafayette Park Hotel, 326 NLRB 824,
827 fn. 13 (1998).
Guided by Peerless Publications, I find that Respondent’s
admonition of Anderson interfered with, restrained, and co-
erced exercise of Section 7 rights because the admonition was
not narrowly tailored in terms of substance, to meet with par-
ticularity only the employer’s legitimate and necessary objec-
tives, without being overly broad, vague, or ambiguous. Nor
was the admonition appropriately limited in its applicability to
affected employees to accomplish the necessarily limited objec-
tives.
Initially, it must be noted that Respondent does not maintain
a written rule delineating appearance of a conflict of interest.
Thus, the oral admonition stands alone. The oral admonition to
Anderson was unclear with regard to limitation to particularly
affected employees. Does it apply to Anderson alone? Does it
apply to all employees in the bargaining unit? Moreover, the
oral admonition was ambiguous and overly broad. In admonish-
ing Anderson, Voros referenced the appearance of a conflict of
interest arising from asking a favor of a news source. Such a
description is not sufficiently tailored to meet Respondent’s
legitimate and necessary objectives. Due to the potentially
broad coverage and the failure to unambiguously and narrowly
tailor the admonition, it improperly impinged on employee
Section 7 rights.
Were the facts of this case analyzed pursuant to traditional
8(a)(1) doctrine, I would similarly find that Voros’ statement
reasonably tended to interfere with the exercise of Section 7
rights. Examining the totality of the circumstances, Voros’
statement implied that Anderson’s communication with a third
party about the ongoing labor dispute resulted in detriment to
Anderson’s reporting integrity as well as that of the newspaper.
Voros made the statement in a private meeting, the purpose of
which was concealed from Anderson, who was under the im-
pression that he was called to Pleasanton to review a story.
Neither Voros nor Stafforini suggested an alternative method of
soliciting support from the city council in a manner which the
Respondent would find did not create the appearance of a con-
flict of interest. Thus, Voros’ statement reasonably tended to
interfere with Anderson’s exercise of Section 7 rights.
CONCLUSION OF LAW
By admonishing Anderson that he had created the appear-
ance of a conflict of interest by speaking to the city council on
behalf of the Union, Respondent interfered with, restrained, and
coerced employees in the exercise of Section 7 rights because
the admonition was not narrowly tailored in terms of substance,
to meet with particularity only Respondent’s legitimate and
necessary objectives, without being overly broad, vague, or
ambiguous and the admonition was not appropriately limited in
its applicability to affected employees to accomplish the neces-
sarily limited objectives. Respondent has engaged in unfair
labor practices affecting commerce within the meaning of Sec-
tion 8(a)(1) and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
[Recommended Order omitted from publication.]